Fitzwater v. Univ. of Kan.
| Decision Date | 30 August 2021 |
| Docket Number | 21-02067-EFM |
| Parties | FALLON G. FITZWATER, Plaintiff, v. UNIVERSITY OF KANSAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Before the Court is Defendant's Motion to Dismiss (Doc. 3) for failure to state a claim upon which relief can be granted. Defendant argues Plaintiff's claims must be dismissed for two reasons: (1) Plaintiff's claims are untimely, and (2) Plaintiff's claims are barred by res judicata. For reasons outlined below, the Court denies Defendant's motion to dismiss.
Plaintiff Fallon Fitzwater is a female Ph.D. student at the University of Kansas (“KU”), Defendant. Plaintiff alleges Defendant failed to respond appropriately to harassment aimed at Plaintiff by her then boyfriend, another Ph.D. student at the University of Kansas. Plaintiff also alleges Defendant retaliated against her after she reported the harassment.
Of importance, the present case is not the first involving the wrongs alleged here - Plaintiff previously filed suit in Kansas state court on February 26, 2018 (“state case”). In that case, Plaintiff asserted a state law negligence claim and Title IX hostile educational environment and retaliation claims against Defendant. Plaintiff served Defendant via certified mail on March 5, 2018. Defendant subsequently filed a motion to dismiss the negligence claim for failure to state a claim, which the court granted on February 21, 2019.
On August 20, 2020, Defendant filed a second motion to dismiss asserting for the first time that the state court lacked subject matter jurisdiction over Plaintiff's remaining Title IX claims because of the state's sovereign immunity.[1] The state court found Defendant properly asserted sovereign immunity, and as a result, the state court lacked subject matter jurisdiction to hear the Title IX claims. The state court granted the motion, and dismissed the Title IX claims on November 25, 2020.
Plaintiff then filed the present case in federal court on February 5 2021, again asserting claims for hostile educational environment and retaliation in violation of Title IX. Defendant now moves to dismiss Plaintiff's claims for failure to state a claim, arguing that: (1) Plaintiff's claims are untimely, and (2) Plaintiff's claims are barred by res judicata.
Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.[3] Upon such motion, the court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.' ”[4] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[5] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of claims as well the grounds on which each claim rests.[6]
Fed. R. Civ. P. 12(b)(6) provides that a court must accept as true all factual allegations in the complaint, but need not afford such a presumption to legal conclusions.[7] Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.[8] If the allegations in the complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.' ”[9]
Defendant asserts that Plaintiff's claims should be dismissed for two reasons: (1) Plaintiff's claims are untimely, and (2) Plaintiff's claims are barred by res judicata. Plaintiff disagrees, arguing instead that (1) her claims are saved by the Kansas savings statute, and (2) res judicata does not bar her claims because they could not have been raised in the first case. The Court will discuss these arguments in turn.
Defendant first argues that Plaintiff's claims fall outside the applicable two-year statute of limitations, [10] and the relevant savings statute, K.S.A. 60-518, does not apply. Plaintiff agrees that her claims fall outside the two-year limitation, [11] but argues the savings statute does apply to save her claims.
As an initial matter, Defendant argues the Court should not reach the merits of Plaintiff's savings statute argument because Plaintiff failed to plead the relevant facts in her complaint. In fact, Plaintiff failed to plead any facts whatsoever regarding the prior state case in her complaint. Plaintiff's failure to include those facts, Defendant argues, renders the savings statue inapplicable regardless of the merits. This argument fails. Although Plaintiff carries the burden of establishing the savings statute, this burden is not limited to facts in the complaint only.
In support of its argument, Defendant cites Moore v. Luther ex rel. Luther, [12] which held that a plaintiff must establish the requirements of the savings statute.[13] Moore did not hold, as Defendant suggests, that a plaintiff must plead the relevant facts in the complaint specifically. Defendant has failed to cite any case requiring the facts to be plead in the complaint, and this Court has failed to find any cases supporting the same.
The Court is aware that a 12(b)(6) motion generally “tests the sufficiency of the allegations within the four corners of a complaint.”[14] But here, Defendant attached state case filings to its motion and specifically asked this Court to take judicial notice of those filings. Defendant cannot now craft an argument that would require the Court to take judicial notice of the filings for one reason, to establish that Plaintiff's claims are outside the two-year limitations period, but ignore them completely for another, analyzing whether the savings statute applies. No. case law supports such an outcome, let alone requires it. As such, the state law filings attached by both Plaintiff and Defendant, of which the Court takes judicial notice, may satisfy Plaintiff's burden and the Court will reach the merits of Plaintiff's savings statute argument.
The Kansas savings statute provides: “If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff . . . may commence a new action within six (6) months after such failure.”[15] “The savings statute does not modify the applicable statute of limitations, nor does it create a new one; instead, K.S.A. 60-518 operates to toll the statute of limitations under certain circumstances, in order to allow a party to gain a determination on the merits.”[16]
To benefit from the savings statute, a plaintiff must prove: (1) the first suit was commenced within the statute of limitations, (2) the first suit was dismissed for reasons other than the merits, and (3) the second suit was filed within six months of dismissal of the first suit.[17] The parties dispute only whether the first suit was commenced.
Defendant argues Plaintiff cannot satisfy the savings statute because the prior state case was never commenced. According to Defendant, a cause of action is not commenced if the court lacks subject matter jurisdiction at the outset of the case, and the state court here lacked subject matter jurisdiction because Defendant raised the defense of sovereign immunity. Defendant relies on four Kansas cases in support of this argument.
Defendant first cites Creamer v. Motors.[18] The plaintiff in Creamer sued the defendant for alleged fraud in an estate sale.[19] When the court dismissed the first suit for failure to state a claim, plaintiff refiled his suit, this time outside of the limitations period.[20] The defendant argued the savings statute applied to the second suit, but the court disagreed. In discussing why the savings statute did not apply, the court noted “plaintiff's filing of [the first suit] was void ab initio given the district court's determination that subject matter jurisdiction was lacking.”[21]
According to Defendant, this language in Creamer established that any case filed in a court without subject matter jurisdiction is void ab initio, and therefore the case is not commenced. But Defendant ignores the most important fact from Creamer, one relied on by the court in its decision - the plaintiff in Creamer never obtained service of process on the defendant. The Creamer Court found this fact dispositive, stating “plaintiff did not ‘commence' [the first case] because she never obtained service of process on the defendants.”[22]
Although Creamer includes one sentence about the case being void ab initio, on which Defendant relies heavily, the court in Creamer clearly stated that the first suit was not commenced because there was no service of process. This Court therefore disagrees with Defendant's interpretation of Creamer, and instead finds that Creamer supports Plaintiff's argument that the state case was commenced because Defendant was properly served.
Defendant next relies on Moore v. Luther ex rel Luther.[23] In Moore, the plaintiff first filed suit five days before the statute of limitations expired, but unbeknownst to plaintiff, the defendant had died before the suit was filed.[24] After a lengthy court battle, appeal, and remand, the case was dismissed for lack of jurisdiction.[25] Plaintiff then filed a second suit alleging the same wrongs, arguing the savings statute applied. The court disagreed, holding instead that ...
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